17
KLASS AND OTHERS v. GERMANY JUGDMENT
The Court does not exclude that the contested legislation, and therefore
the measures permitted thereunder, could also involve an interference with
the exercise of a person’s right to respect for his home. However, the Court
does not deem it necessary in the present proceedings to decide this point.
42. The cardinal issue arising under Article 8 (art. 8) in the present case
is whether the interference so found is justified by the terms of paragraph 2
of the Article (art. 8-2). This paragraph, since it provides for an exception to
a right guaranteed by the Convention, is to be narrowly interpreted. Powers
of secret surveillance of citizens, characterising as they do the police state,
are tolerable under the Convention only in so far as strictly necessary for
safeguarding the democratic institutions.
43. In order for the "interference" established above not to infringe
Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have
been "in accordance with the law". This requirement is fulfilled in the
present case since the "interference" results from Acts passed by Parliament,
including one Act which was modified by the Federal Constitutional Court,
in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see
paragraph 11 above). In addition, the Court observes that, as both the
Government and the Commission pointed out, any individual measure of
surveillance has to comply with the strict conditions and procedures laid
down in the legislation itself.
44. It remains to be determined whether the other requisites laid down in
paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the
Government and the Commission, the interference permitted by the
contested legislation was "necessary in a democratic society in the interests
of national security" and/or "for the prevention of disorder or crime". Before
the Court the Government submitted that the interference was additionally
justified "in the interests of ... public safety" and "for the protection of the
rights and freedoms of others".
45. The G 10 defines precisely, and thereby limits, the purposes for
which the restrictive measures may be imposed. It provides that, in order to
protect against "imminent dangers" threatening "the free democratic
constitutional order", "the existence or security of the Federation or of a
Land", "the security of the (allied) armed forces" stationed on the territory
of the Republic or the security of "the troops of one of the Three Powers
stationed in the Land of Berlin", the responsible authorities may authorise
the restrictions referred to above (see paragraph 17).
46. The Court, sharing the view of the Government and the Commission,
finds that the aim of the G 10 is indeed to safeguard national security and/or
to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In
these circumstances, the Court does not deem it necessary to decide whether
the further purposes cited by the Government are also relevant.
On the other hand, it has to be ascertained whether the means provided
under the impugned legislation for the achievement of the above-mentioned